Is the Constitution Dead?

All too often when I propose returning America’s monetary and banking systems to constitutional principles, or revitalizing “the Militia of the several States”, I find myself assailed with the retort that “the Constitution is dead”; that attempts to apply its true principles—its “original intent”—as a means of limiting the powers of contemporary public officials are futile; and that my exhortations to the contrary are irrelevant, impotent, and even innately, if innocuously, screwball in character. Although no man is likely to be taken for a prophet in his own country, one’s being spurned in that role does not, by itself, prove his pronouncements erroneous. Especially when the argument against his prophetic gift is as self-evidently nonsensical as that “the Constitution is dead”.

Plainly, the Constitution is anything but “dead” with respect to certain individuals’ access to and employment of political power that affects the lives of every American every day. To the contrary: It is very much alive and active in regard to elections to Congress and the Presidency, to the enactment of statutes, to decisions of the Supreme Court (and hundreds of other tribunals), to the President’s command of the Armed Forces of the United States, and so on. Every transaction in these domains transpires under color of the Constitution, with at least tacit appeal to its authority, and at least in semblance according to its procedures.

True enough, many things done procedurally in the name of the Constitution are substantively unconstitutional. But no one in or seeking office in the General Government or the States dares to admit that he is acting outside, with disregard, or in contradiction of the Constitution, that he intends to violate it, or even that he may be justified in doing so in any particular future circumstances. Even those public officials who flout it in practice nonetheless acknowledge the Constitution to be just what it says it is: “the supreme Law of the Land” (Article VI, Clause 2), which everyone, themselves included, must follow. They invoke the Constitution as the source of their authority, and assert that their actions are fully consistent with it. That this may constitute self-deception, hypocrisy, deceit, or even perjury cannot falsify the Constitution’s character as “the supreme Law”, or deny the efficacy of the transmission and exercise of power pursuant to it.

That criminals violate a law does not negate it. So how is it that the powers the Constitution grants—and all too many that it does not grant—are fully alive; whereas the limitations on power that the Constitution also prescribes, in language no less intelligible and forceful, are supposedly “dead”? Simply because many individuals filling public offices under color of the Constitution choose to assert the powers but to forget the limitations? On what theory of constitutional government can such a pattern of misbehavior be legitimate? On what theory of law can officials enforce the parts of a law that grant them powers, while refusing to obey the parts of the very same law that impose disabilities on them?

Of most practical concern, if “the Constitution is dead” with respect to its limitations on governmental power, then how can anything that public officials do be legally wrong? If public officials refuse to obey the Constitution as to its limitations—and supposedly need not do so because it is to that extent “dead”—then how can Americans criticize, challenge, and condemn what they are doing? On what grounds can Americans chastise them for their misdeeds? If “the Constitution is dead” as to its limitations, then no public official violates his “Oath or Affirmation, to support this Constitution” (Article VI, Clause 3) when he disregards those supposedly ineffective restraints. Similarly, if “the Constitution is dead” as to its limitations, then it is “dead”, too, as to the individual rights it guarantees, because these rights establish fundamental constraints on governmental power. Thus, no public official violates even Congressional statutes ostensibly protecting civil rights (e.g., Title 18, United States Code, sections 241 and 242) when he disregards those rights as nonexistent.

Moreover, if, on the basis of the excuse that “the Constitution is dead”, Americans supinely obey public officials whenever the latter transgress the Constitution, then by their acquiescence they themselves admit that

  • any statute Congress enacts, any judicial decision, and any order of the President to the Armed Forces is “law”—and even “supreme law”, because there is nothing superior by which to judge it; thus,
  • “law” is just another name for raw power; and, therefore,
  • those who succeed in seizing control of the machinery of government can do whatever they like.

If “the Constitution is dead” as to its limitations, then public officials in the exercise of unbridled power need consult only their own wills, appetites, and vices for direction. They are accountable to no one but themselves. In the truest sense of the term, they are utterly lawless. And common Americans are impotent, imbecile, and impertinent to say anything within the law against them.

It is useless to invoke the electorate as the ultimate—or even a potential—”check and balance” on rogue public officials. For who is to check the electorate, if not the Constitution? The Constitution imposes constraints on voters, as well as officials:

[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials * * * . One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943).

If “the Constitution is dead” as to its limitations, though, then the voters, too, may do whatever they choose, and thus become a source of the problem, not its solution. As recent experience has repetitively proven, they may elect the worst possible miscreants to the highest public offices. And that such corrupt characters have been chosen “by the people” will enable them to camouflage their crimes under the whitewash of “democracy”. (Which, no doubt, is why this buzzword has suddenly become so popular in political discourse.) Thus, voters unrestrained by the Constitution will simply provide further evidence for History’s teaching that unbridled democracy leads straight to tyranny. When has it not?

On the other side, if “the Constitution is dead”, then to what authority can patriots appeal against the depredations of malign public officials and a corrupted electorate? Without the Constitution, patriots are mere dreamers or rebels whom the Establishment can condemn as crackpots or criminals.

In short, if common Americans concede that “the Constitution is dead”, they will surrender the high ground, the initiative, and even their own best weapon, and put themselves at their enemies’ mercy.

Moreover, if “the Constitution is dead”, how and with what should or could patriots attempt to replace the present political apparatus that oppresses them? A viable strategy for reform outside of the Constitution must posit some alternative legal structure. Any reasonably intelligent individual can determine what the Constitution means (or ought to mean, perforce of its “original intent”), and how it has been misinterpreted and even perverted over the years. If improper interpretations and applications have stemmed from failures in the original draftsmanship, patriots can propose amendments with some confidence, on the basis of experience. Thus, any necessary reforms can be constructed upon a solid foundation of knowledge, continuity, and above all legitimacy. What, though, can anyone predict about some entirely novel arrangement that would replace the Constitution?

Here, the experience of the Founding Fathers is highly instructive. The so-called “American Revolution” was anything but a “revolution”, in the truest sense of that term. It was a War of Independence—from England, but not from the basic precepts of English law. It was an attempt to perfect those precepts, by substituting as the controlling principles of government fixed constitutional powers and disabilities in place of fluid political precedents. For rule according to the English scheme of reliance on political precedents had proven deficient, because that system could so easily be bent to usurpation and tyranny.

Today, the overexpansion of supposed governmental powers is the result of political precedents: Americans acquiesce in it simply because it has happened, not because it can be proven to have a constitutional basis. Unlike the situation confronting the Founding Fathers, though, the present political Establishment cannot claim that its usurpations are sanctioned by traditional political norms: that political precedents contrary to the Constitution are justified because such precedents always have been. To the contrary: The Establishment’s usurpations are precisely that: exercises of powers which We the People never delegated to their government, and therefore to which no public official acting under color of the Constitution may claim any right perforce of any precedent. Indeed, any precedent for a contemporary usurpation is itself nothing but an usurpation.

And an earlier crime cannot legitimize a later one. “[N]o one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.” Walz v. Tax Commission, 397 U.S. 664, 678 (1970). Thus, the task facing contemporary Americans is actually less daunting in principle than the one that confronted the Founding Fathers: For they had to create a new Constitution from whole cloth, when the very principle of constitutionalism was novel and unproven. Whereas, now, We the People merely have to defend the Constitution, and rectify its imperfections.

This, however, raises the more profound question of whether, if one concedes that “the Constitution is dead”—such that it cannot be revived, improved, and preserved—one must also concede that constitutionalism is futile, too. Did the Constitution fail simply because it was fatally flawed, or because any attempt to limit political power by legal rules, no matter how carefully contrived, is inevitably doomed? Is “government” in the only worthwhile meaning of the term—that is, organized political power controlled by and answerable to “the Laws of Nature and of Nature’s God”—impossible?

Without the Constitution, Americans must fall back on the “self-evident” “truths” of the Declaration of Independence, that

all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

But the Constitution is the product of, embodies, and depends upon these truths. If “the Constitution is dead”, does not its cause of death extend to the Declaration as well? If the Constitution has proven unworkable perforce of its own internal incoherence, and its principles have thereby exposed themselves as fallacies, then are not the principles on which they rest, the “self-evident” “truths” of the Declaration, also tainted as no less erroneous?

If so, is the Declaration not also wrong in its assertion that “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce the[ people] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security”? So, must We the People allow themselves to be “reduce[d] * * * under absolute Despotism”, and that “absolute Despotism” then be suffered to continue in perpetuity, until it spontaneously collapses of its own imbecility and corruption, taking down all of society with it?

Any patriot must reject this conclusion out of hand—along with the premise on which it rests. What is “dead” is not the Constitution, or constitutionalism, or the Declaration of Independence, because they embody ideas and ideals that cannot die. But they can find themselves bereft of defenders. All too many Americans no longer entertain these ideas or cling to these ideals, not because they believe them wrong and unattainable, but simply because they lack the gumption to stand up for the way of life the Founding Fathers bequeathed to them.

This, however, is not an unalterably fatal condition. Common Americans once possessed gumption, and they can again. After all, it does not require heroic self-sacrifice—for one does not sacrifice himself by fighting for what is his. It does not require extraordinary courage—for even a cornered rat will resist an attacker. It requires only enough energy and determination to overcome the political sloth that throws in the sponge because that is the least tiresome thing to do.

If Americans cannot muster that energy, then for all practical purposes their country is dead. And the fault for that fatality cannot be attributed to the Constitution.

vieiraDr. Edwin Vieira  is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute. This article was originally published at on March 14, 2006.


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